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Guidance Private Archives
Guidance Private Archives
(i) Advise archives offices on when and why to undertake a full detailed
assessment of whether deposited private archive collections are
subject to the FOI Act
(ii) Set out the factors to be considered in a full detailed assessment and
the types of questions to be asked
(iii) Give some guidance on how to go about the full detailed assessment
and
(iv) Update our advice on what to do if you receive an FOI request
involving private archive collections
Please note that this is operational guidance not legal advice. For legal advice
you should contact your own legal advisers.
• FOI applies to information not records. In other words, under FOI, the
public have a general right to information but not necessarily a right to
copies of document or other medium in which such information is
stored. When assessing whether FOI applies to a deposited private
archive collection, it is necessary to consider both the information and
the medium on which it is held. It is also necessary to keep open the
possibility that FOI may apply to some of the information only, i.e. to
part of a collection, even though the rest of it falls outside FOI.
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• Information contained in private archive collections is only caught by
FOI if it is held by or on behalf of a public authority. It is considered to
be held by or on behalf of a public authority unless it is held on behalf
of a person or body which is not a public authority. The term ‘held’ is
not defined in the Act and there is no single criterion that can be
applied in determining whether information is held or not. Consideration
of the factors in section 5 below will help you determine the issue
• Decisions will have to be made on a case by case basis. The fact that
an archive collection is owned by a private individual or body does not
automatically take it out of FOI, just as the fact that an archives office
has an interest in holding it does not automatically bring it within FOI.
The position concerning what is ‘held’ and what is ‘held on behalf of’ is
more complex than that and the status of each collection can be
determined only by testing it against the factors set out in section 5
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3 When and why to undertake a full detailed assessment
of whether a deposited private archive collection is
subject to the FOI Act
If you have not done so already, it would be sensible to do an initial
assessment of your private archive collections. The purpose of this initial
assessment is to:
This will enable you to identify collections which should be prioritised for full
assessment. Carrying out a full detailed assessment of a collection will be a
complex and time-consuming task and it would be sensible to concentrate
resources on where they are most needed, i.e. on collections at risk.
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Here are some arguments for and against full detailed assessment:
FOR AGAINST
• Consider seeking legal advice. The depositor may wish to involve his
own legal adviser in the process also
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• Contact The National Archives to let us know you are embarking on an
assessment. We may be able to provide case-specific advice as well
as providing general guidance in the light of experience gained in
similar exercises elsewhere. We plan to collate information on
assessment of private archive collections so that our advice to you can
be as informed and helpful as possible
• Assess the archive collection against each factor and record the
results. This is not a tick box exercise; you will be aiming to conclude
with a well-documented and convincing assessment that can support
your case
If the outcome of an assessment is that the collection falls outside FOI and
you refuse an FOI request on those grounds, the enquirer may challenge this
refusal by complaining to the Information Commissioner. If the Information
Commissioner takes the view that the collection falls within FOI and issues a
Decision Notice to this effect, you have two options:
• Accept the ruling, handle the enquiry as an FOI request and provide
access to the collection unless exemptions apply (see also section 6)
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been identified and that are likely to be relevant. However, the list is not
necessarily exhaustive and a particular case may throw up other factors that
are relevant and should be included in the assessment.
While all eighteen factors should be considered, some are more relevant to
private archive collections than others. The weight that will attach to each
factor will vary from case to case so a scoring scheme is not practicable. But
as a general rule, the more involvement there has been by a public body in
creation of the private archive collection, the more public funding there has
been for its preservation, the less control the owner has retained over access
and use of the collection and the more constrained is his right to withdraw it
from the authority, the more it is likely that the collection falls within the FOI
Act.
The next part of the guidance will set out each factor and give some examples
of how it should be interpreted.
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the recorded information so that it remains intact, unaltered and
capable of being used. In the case of information held digitally,
this includes transfer to new storage media and migration to new
software. Responsibility for this depends largely on the format of
the information and practical arrangements within the archive
service. Responsibility for the archives is likely to fall to the
operational head of the archives services. In the case of a local
archives service this would be the county archivist; in a
University Library it would be the head of the library or the head
of Special Collections, depending on the extent of delegation by
the former to the latter. In practical terms, the actions involved in
maintenance will fall to more junior staff under their direction. In
the case of digital archives, maintenance of the information may
actually be done by IT staff or a contractor on behalf of the
archivist and under his or her direction.
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Factors relating to ownership
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Factor 9, Who is paying for its storage?
Storage, in this context, includes not only use of storage space
(either rooms and shelves, etc, or space on a server) but also
cataloguing, conservation etc, i.e. costs incurred by holding the
archives. It is likely that the organisation with custody is paying
for storage but that may not always be the case. For example,
the depositor might have provided an endowment or some other
financial support, or might be paying for insurance of the
archives (private archives are not usually specifically insured by
an archives service). Another possibility is that the archive
collection has benefited from a grant from a private body such
as the Leverhulme Trust, or is covered by Government
indemnity. This factor is relevant to private archive collections.
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On the other hand, it is possible that some of the information will
have been created in the performance of an official function (see
also Factor 8).
Factor 15, Does the public authority have its own interest in the content of the
information or only in the fact of its preservation?
The likelihood is that the archive collection was accepted on
deposit because it fit into the archives service’s overall collecting
remit, i.e. it relates to its geographical catchment area (such as
with a county archives service) or to a specialist research area
(such as with Warwick University Modern Records Centre’s
industrial relations archive collections). The public authority,
therefore, has a general interest in an archive collection falling
within the general criterion of overall relevance, and a continuing
interest in being able to acquire similar material. However, it is
the end-user, i.e. the researcher visiting the archives service or
sending a written enquiry, who has the primary interest in the
contents of the information. This factor is relevant to private
archive collections.
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Factor 17, Who has a right to have access to and use the
information?
It is likely that the depositor and the archives service have rights
of access to the information. (Only exceptionally are boxes
sealed and inaccessible to the archives service.) Access by
others will be subject to the depositor’s instructions which are
usually set out in the deposit agreement, in correspondence or
by oral agreement. Instructions of this nature vary. Sometimes
they require all requests, or requests falling into a specified
category, to be referred to the depositor or a nominated
representative for individual consideration. In other cases they
delegate the decision to the archives service, in some
circumstances subject to agreed constraints. This factor is
particularly relevant to private archive collections.
Factor 18, Who would have the right to require it to be amended, deleted or
delivered up?
It is simpler to consider separately the elements of this factor,
which is particularly relevant to private archive collections.
(b) The right to have delivered up can include the right to borrow
back items on a temporary basis and the right to withdraw the
archive collection completely. The deposit agreement or
correspondence or oral agreement may set out any limitations
on the depositor’s rights. These can include a requirement to
give a period of notice before removing his collection, a
requirement to recompense the archives service for the cost of
storage and cataloguing.
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6 What to do if you receive an FOI request involving
private archive collections
Note that once a collection has been treated as if it were subject to FOI, for
example, by applying an FOI exemption in response to an FOI request, it may
be more difficult subsequently to claim that the collection is not, in fact,
subject to FOI.
If you have any questions about this guidance please contact Susan Healy at
susan.healy@nationalarchives.gov.uk. If you are about to assess a private
archive collection please contact the National Advisory Service at
nas@nationalarchives.gov.uk .
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